In a significant judgment delivered earlier this month, the Madurai bench of the Madras High Court identified material "inconsistencies" in the Police Standing Orders (PSO) and set out specific directions to the department on when a person can be considered a history-sheeter.
While disposing of a batch of 30 writ petitions, seeking removal of the Petitioners' name from the history sheets for various reasons, the single Judge bench of Justice N. Seshasayee observed,
"The need for effective policing (through history-sheeting), and, the arbitrary and malafide exercise of police power in history-sheeting (an individual), are conceptually different… This court, being adorned with the duty of being a Constitutional sentinel, has to balance between the right of an individual to his fundamental rights as against the interests of the society in maintaining law and order through effective preventive policing."
It has therefore issued 10 directions to be followed by the Police personnel, in the matter of history-sheeting, until statutory alternatives for the same are notified. (The directions are reproduced at the end of this document)
The judgment running into 67 pages broadly addresses the following three provisions of the PSO:
In terms of PSO 747, History sheets shall be opened automatically at the time of conviction for persons convicted under certain specified offenses, and shall be retained for two years after release from jail.
Finding this provision to be "least troublesome" the bench observed,
"In terms of PSO 747, a convict alone will be history-sheeted, and will remain a history-sheeter during the term of his sentence plus two years. A citizen's right is protected here, since the sine qua non for history-sheeting is a judgment of a Court. This is akin to the National Registry of sexual offenders brought about under the Criminal Law Amendment Act, 2018. It has a legislative base with a judicial verdict as its backing."
The two areas where the power to history-sheet is arbitrarily exercised, the court observed, are (i) while exercising power under PSO 749; and (ii) while retaining a history-sheeter under PSO 748(2).
Under PSO 749(1) a history sheet can be opened for Suspects, but it presumes every person who is convicted even once for any offence under the IPC as a suspect.
Specifically, PSO 749(1)(a) empowers opening of history sheet against persons once convicted under any Section of the Indian Penal Code and are considered to be likely to commit crime; and PSO 749(1)(b) empowers opening of history sheet against persons, not convicted, but believed to be addicted to crime.
On a perusal of these provisions the bench noted that PSO 749(1)(a) provides an "unwitting opportunity" to the police official to believe that, 'once an offender is always an offender'. Deprecating such an assumption the bench observed,
"There cannot be a greater instance of arbitrary discrimination and insult to the Constitution than to prescribe a presumption that a former convict is an eternal suspect. Preventive policing cannot extend to the extent of treating the entire society as suspects, and hence it ought to filter those who are prone to commit a crime from the rest on an objective criterion for a special-watch through history-sheeting."
The Court said,
"If the need for involvement of a person in a crime after his initial conviction is eliminated from the line of consideration, that is to mean, if a person is not convicted or where not even a FIR is registered subsequent to his earlier conviction, it is difficult to conceive how a person is known to commit a crime, or believes to have committed a crime, or considered likely to commit a crime."
It therefore concluded,
"A provision that enables the policeman to presume that every convict shall be 'considered to be likely to commit a crime' is more an effort to amuse the spirit of Constitutionalism…The effect it instantly produces is that it renders the reformation theory which our criminal justice jurisprudence has not abandoned, instantly meaningless."
Under PSO 749(1)(b), the bench observed, a non-convict is equated to a convict. Further it remarked that the use of expressions like 'believed to be addicted to' in its reference to commission of a crime, "leave interpretative challenges".
"The definitional inadequacy in identifying a Suspect under PSO 749(1)(b)…is glaring. And, it throws the citizen to the mercy of the police power. This also has relevance in situations where the Court has acquitted a history-sheeter, but still grants to the SHO the luxury to be in a transcendental state to consider him as known or believed to, or likely to commit a crime, and to believe what is not."
Shockingly, the court noted, PSO 749(1)(b) does not even make pendency of a FIR a criterion for history sheeting for identifying a suspect.
"If a person were to be considered as one addicted to crime, then there should be more than one FIR, for a single FIR cannot merit a classification as an addiction. The word addiction in PSO 749(1)(b), necessarily has to carry the same meaning as given to the expression 'habitually commit' in PSO 749(2)(a), as given by this Court in Ganesan case [2010(6)CTC 507] where it said: "..An isolated act or commission cannot be characterized as a habitual act..." the bench was constrained to clarify.
In Ganesan v. DSP, Virudunagar (2011) 1 MLJ (Crl) 214, the High Court had held that the authorities vested with the discretion of opening and retaining history sheets should prove that on the examination of the "data" that there is awareness on their part indicating their state of mind that by probable reasoning, they come to a conclusion or infer, about the conduct of person, for whom a history sheet is opened or retained..
The above observations on PSO 749(1)(b) were made by the Court also in context with Rowdy Sheets under PSO 729 (2)(a) which states— Persons who habitually commit, attempt to commit or abet the commission of offences involving a breach of peace may be classified as rowdies and Rowdy Sheets may be opened for them under the orders of the Superintendent or Sub-Divisional Officer.
The bench observed that where a statutory definition is available to define a "habitual offender", a body of administrative instructions in the PSO cannot have a definition different from the one which the statute provides.
"The Executive is bound by the definition laid down by the legislature. Accordingly, the expression 'habitually' as found in PSO(2)(a) for qualifying a commission of, or an attempt to commit an offence has to be given the same meaning provided for an habitual offender under Sec.2(4) of the Habitual Offenders Act," the bench said.
In terms of Section 3 of the Habitual Offenders Act, a habitual offender is one who has undergone at least "three substantial sentences of imprisonment", and is notified as an offender by the Government after granting him a right of hearing.
In this backdrop the bench said,
"In terms of the PSO no right of pre-hearing is contemplated while Rowdy-sheeting a person as an habitual offender, whereas the Habitual Offenders Act makes the process mandatory."
It observed that the PSO pattern to brand a habitual offender without a right of hearing, though can be justified in terms of the Supreme Court's verdict in Malak Singh v. State of Punjab & Haryana & Ors., AIR 1981 SC 760, however, since in the State of Tamil Nadu there is a legislation to notify a habitual offender as in Tamil Nadu Habitual Offenders Act, 1948, "the right of hearing cannot be denied."
Significance of history sheeting for preventive policing & safeguards for citizens' rights
Even though the court pointed out such "vagueness" and "internal inconsistencies" in the choice of expressions which the PSO employ, it refrained from striking out the PSO in view of the (lack of) existing tools for crime-prevention.
Recognizing the significance of preventive policing through history-sheeting, the bench observed,
"The voices that decry history-sheeting as a legacy of the imperialism and opposed to Constitutionalism, presume an ideal and the universal innocence of all. But policing is not about believing in an ideal, and is about presuming its opposite. It is intended to protect those who seek security for their lives under the Constitution from those who make their peaceful journey difficult. Crime is not a choice that law offers, but is one that an individual makes, and hence preventive policing (that which intends to prevent crime) through history- sheeting is not just common-sensical, but also is Constitutionally relevant."
Alive of the constant threat that "surveillance policing" poses to the fundamental rights of citizens, the bench emphasized on the need to strike a balance between the fundamental rights as against the interests of the society in maintaining law and order through effective preventive policing.
"In a society that we live in, it is essential to balance the duty of the State to maintain the law and order, and the right of an individual to be left alone. However, till such time the legislature takes a call on its power and the procedure to history-sheet statutory, history sheeting within the present scheme of things under the PSO may have to continue.
To strip the police of its power to history-sheet with no reaction time will have greater ramification on the crime-prevention as it concerns the larger public interest. It may lead to a judiciary-engineered imbalance between right of the public and the individual right of the citizens. Hence, there is a felt need to retain police power to history sheet under the PSO as a transient arrangement," it observed.
The bench reminded the Executive of the fundamental right to privacy of citizens, upheld by a nine-judge bench of the Supreme Court in KS Puttaswamy & Anr, v. Union of India, (2017) 10 SCC 1.
Further it reiterated, maintenance of History sheet etc., aims at prevention of crime, and that it should not be maintained beyond the point which is essential, lest it would invade the fundamental rights of all those who are history sheeted (See Malak Singh v. State of Punjab & Haryana & Ors., AIR 1981 SC 760).
"The free roaming space that the PSO has provided through its inaccurate and imprecise drafting is an open ticket to arbitrary exercise of police power to history-sheet. The police personnel is reminded that preventive-policing is not easy-policing. It is one thing to have a general watch on the entire society for criminality, and it is entirely another thing to pick a person for special branding as a suspect for surveillance," the bench cautioned.
"In Ganesan's case, after referring to several authorities of the Hon'ble Supreme Court and also the judgements of this Court, this Court emphasized the need for gathering materials on the basis of which the police official empowered to history-sheet may consider it necessary to history sheet a person, which in other words would mean that he should apply his mind to those materials. This twin criteria would eschew the possibility of arbitrariness seeping into the decision-making process involved in the history-sheeting."
Opening of History sheets for participating in demonstrations, protests, etc.
Few of the petitions in the present case pertained to accused who had participated in political demonstrations. Agitating opening of history sheets against them, their counsel had argued that the right to express a dissent, right to protest and right to be part of any demonstration are integral to the democratic rights of the citizens, and resorting to history-sheeting therefore, is an indignation to Constitutionalism, since history-sheeting can be justified only for prevention of a crime and not for throttling the fundamental rights of the citizens to voice their protest.
In view of these submissions the bench suggested,
"Ideally where cases are registered against the citizens for participating in any demonstrations, agitations or protest or the like, consistent with the freedom granted by the Constitution, history-sheeting on that score can be resorted to only after an Order is passed against the concerned person under Sec.107 Cr.P.C. or Sec.110 Cr.P.C. since it will enable to balance the need to safeguard the citizens' right to protest without violence, and duty of the police to maintain peace in the society. This balancing act can be well achieved when an Executive magistrate, and not the police, takes a decision after hearing the party to be affected by history-sheeting."
"The free roaming space that the PSO has provided through its inaccurate and imprecise drafting is an open ticket to arbitrary exercise of police power to history-sheet. The police personnel is reminded that preventive-policing is not easy-policing. It is one thing to have a general watch on the entire society for criminality, and it is entirely another thing to pick a person for special branding as a suspect for surveillance."
Sensitize the police in their approach to history-sheeting to prevent avoidable litigation
Disappointed by the "ignorant attitude" of the police in history-sheeting, which often "varies" the principles laid down by the Court, the bench stressed on the need to impart proper training to all policemen, to avoid multiplicity of litigation.
"The importance of avoiding a litigation that can be avoided cannot be over emphasized since it clogs and obstructs the free outflow of cases, and contributes to what has come to described & etc. batch cases as 'docket explosion'. Nothing explodes where there is a responsibility to avoid it. A serious attempt is therefore made to ensure that the police officials are sensitized in order the inflow of a particular category of cases is reduced," it said.
PSO are administrative orders
Placing reliance on the Supreme Court verdict in Malak Singh v. State of Punjab & Haryana & Ors., AIR 1981 SC 760, the High Court reiterated that history-sheeting is only an "administrative action".
Such non-statutory administrative instructions, the bench "suspects", cannot carve an exception to the Fundamental rights of individuals.
"It is now possible to deduce logically, that the Police Standing Orders, inasmuch as they embody a set of administrative instructions, to the extent it either supports the preservation of any of the fundamental rights of the citizens, or operates in a neutral zone, it may be granted a place in the Constitutional scheme. However, when it comes to limiting the right to life under Article 21, its place within the phrase "procedure established by law", appears suspect," the bench remarked.
It proceeded to suggest that the State requires to "review" the very process by which it allows the policemen to history-sheet a citizen and it has to make the whole power and the process "statutory".
Thus, until legislative alternatives are found, the bench has issued the following directions:
Case Title: Thirumagan & Anr. v. Superintendent of Police, Madurai & Ors. (and other connected petitions)
Case No.: WP (MD) No. 21040/2018 & etc. batch cases
Quorum: Justice N. Seshasayee
Appearance: Advocates N.Anandakumar and Henry Tiphagne (for Petitioners); Govt. Advocate S. Bharathi, Additional Public Proseuctors KK Ramakrishnan and V. Neelakandan (for Respondents); Senior Advocate V. Kathirvel (Amicus Curiae)
Click Here To Download Judgment